Meral Smith v. Wynnie Testmark, Director of the VI Bureau of Corrections

• Court: Superior Court of The Virgin Islands
• Decided: October 29, 2021
• Docket: SX-17-CV-319
• Status: Unpublished

Opinion

SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST CROIX

MERAL SMITH

PETITIONER, Civil No SX 17 CV 319

V CITE AS 2021 VI SUPER 108U

WYNNIE TESTMARK DIRECTOR OF THE VIRGIN ISLANDS BLREAL OF CORRECTIONS,

RESPONDEhT

Appearances Meral Smith Pro Se For Pennoner

Denise N George, Esq Virgin Islands Department of Justice St Thomas U S Virgin Nands F0: Respondent

MEMORANDUM OPINION

WILLOCKS Presiding Judge

([1 1 THIS MATTER is before the Count sua sponte fox review

BACKGROUND

(II 2 On July 25 2017 Petitioner Metal Smith (hereinafter Petitioner ) filed a petition fox writ

of habeas corpus (hereinaftex July 25 2017 Petition ) and Rick Mullgrav Director of Virgin

Islands Bureau of Correction was named as the respondent (hereinafter Respondent ) I On

January 16 2018 Petitioner filed a supplemental pleading [0 his July 25 2017 Petition

' On July 30 2019 the Court amend an order whereby the Court ordered the caption amended to reflect that Wynnie Testamark is now the Director of the Virgin Islands Bureau of Corrections Thus Respondent as used herein will refer to the then current Dircclor of (he Virain Islands Bureau of Corrections Snurh 1 Testamatk 8X 17 CV "419 Memorandum Opinion 2021 VI SUPER 1081] Page 2 0t 19

‘11 3 On February 28 2018 the Court entered an order whereby the Court scheduled a review

hearing on June 29 2018

‘1[ 4 On March 20 2018 Petitionet filed a petition for a writ of habeas corpus ad testificandum

whereby Petitioner requested the Court to requireIe] [Respondent] to bring the Petitioner before

the Court f01 the leview hearing (March 20 2018 Petition )

‘I[ 5 On May 21 2018 Respondent filed a motion for the June 29 2018 review hearing to

proceed via Video conference which was subsequently granted by the Court by an order enteted

on May 25 2018

‘l{ 6 On June 21 2018 Petitioner filed a motion fox a new order in response to the Court 9 May

25 2018 order

‘11 7 On June 29 2018 the teview hearing was. continued due to technical difficulties

‘11 8 On July 12 2018 Petitioner filed a motion fox decisiom 0n motions/petition pending

(119 On March 1 2019 the Court entered and issued a writ of habeas corpus (hereinafter

March 1 2019 Writ ) whereby the Court granted Petitioner 5 July 25 2017 Petition as to Claim

One and Claim Five to wit the issues of lack of due process in his transfer and the unavailability

of educational programs denied Petitioner 5 July 25 2017 Petition as to Claim Two Claim

Three Claim Foul and Claim Six to wit the a1legations that the Petitioner may not be

incarcerated in a privately owned prison facility that the Respondent is required to establish

mitten criteria for transfer and selection of facilities and that Petitioner must be able to review of

BOC s agreement with Saguaro ordered Respondent to file a return and ordered that Petitioner

may file a traverse thereafter ° (March 1 2019 Writ )

’ In the M21th 1 2019 Writ the Court explained Snark v Testammk SX 17 CV 319 Memorandum Opinion 2021 VI SUPER 108U Page 3 of E9

A review of the Petition indicates that the Petitioner is ultimately requesting relief baseti on the tollowing six elaims I) that he was transferred hum Golden Grove to a faciEity outsiée of the Territory in Violation oi the Virgin Islands Rules & Regulations 2) that it is illegal to hate the Petitioner confined in a privately 0w ned prison 1) that Saguaro does not comply with the Virgin [stands Code and the Respondent hats no written eriteria for determining eompiianee 4) that the Respondent has violated the Virgin Islands Code by tailing to establish written eritet‘ia for determining whether a transfer taeility meets statutory requirements for educational programs and how those programs will enable inmates to gain marketabEe skim 5) that the ?etitioner has been preVented tram taking part in an) educational or voeational programs at Saguaro and 6) that the Petitioner has not been allowed to retiew the contract between the Virgin Islands Bureau of Corrections (hereinafter BOC ) and the owner at the Saguaro faeility For the following reasons the Petition will be granted in part and denieti in part

Claim One Fatima to Follow Transfer Procedure

In the present ease the Petitioner aIEeges that he had no warning of a [muster and was toreibl) removed from Golden Grove to Saguaro (See Pet ‘][‘]{ 1 l0 ) He alleges that he remixed no notiee and that no heating took plaee in aeeordanee with the Vitgin [stands Rules & Regulations (See rd } These allegations presumed to be true establish a prima taeie ease tor haheas relief Clam! Two Illegal Confluenwm m a Future Pn‘son

In this eaSe the Virgin Istands Legistature had the authmization to amend or meet loeal laws whieh it chose to do when it authorized the transfer of inmates to privately 0w ned {aeiIities Further the change in the law does not make it an uneonstitutionat er post filth?) law beeause it is not penai and does not lurther punish the Petitioner Further there are additional due pmeess pruteetions in plaee in the lorm 0f the t1 anster heating outlined in suhehapter 4503 of the Virgin Islands RuEes and Regulations As sueh the Petitioner has not p10\en primal taeie that his eoniinement in a privately owned prison is illegal Clam: Three Fatima to Establish Clint“: to Determine Whether (1 Transit): Out of Tenlron 15 War I mm d

The minored language 01 Section 450? and the Vilgin IsEands Rules & Regulations indieates that a determination must be made by the Direetor of 80C but not that the Direetor must establish any further written guidelines lot doing so Rather the due prom» the Petitioner claims. is lacking stems from the mandatory transfer hearing the pmeedute for whieh is set out in suhehapter 4503 at the Virgin islands Rules and Reoulations and [he eommittee 5 written findings For that reason the Petitioner has not made a prima taeie ease tor relief for taiiure to adopt turther eriteria tor transfer outside Ul the Tenitory Chum Four Failme r0 Esrablzsh Cllfe’lia to Determine Whether Tlamte: Facahtim C‘omgzlt 111th Vu gin Islands Lam

As alum. the establishment of Seleetion criteria is not the issue The potential denial of rights does not stem tram the Eaek 0t eriteria but from the transter to a laeiEity that is not in compliance with Virgin Islands law The remedy tor this Violation is not to establish new guidelines but to remove an inmate to an appropriate Lorreetional taeility Therefore the Petitioner s allegations though taken as true are an insulfieient prima facie elaim of relief C[cum Fae Pamugation in Edmational Programs

It is not made clear by the Petitioner whether the problem is that Saguaro times not have any edueational programs or that the Petitioner has been denied participation in existing programs In the interest Smifhl Testamaik SX 17 CV 319 Memorandum Opinion 2021 VI SUPER 1081) Page 4 0f l9

‘]1 10 On March 18 2019 Petitioner filed a motion f01 reconsideration and coxrection in response

to the Cou1t 3 March 1 2019 Writ In the March 18 2019 motion Petitioner advised the Court

that the aeqttence of events outlined in the Match 1 2019 Writ were inaccurate and clatified that

Petitioner was prosecuted in the District Court of the Vii gin Islands and that he was taken directly

out of the courtroom after being sentenced and transferred out of the Virgin Islands to Puerto Rico

and then to Federal Bureau of Prisons (BOP) facilities in America (March 18 2019 Motion p

I )

‘ll 1 1 On March 20 2019 Petitioner filed a motion for a show cause order whereby Petitioner

requested the Court to tequire Respondent file an answer (response) to Petitionei 5 [July 25 2017

Petition] within 30 days herefrom showing undet what legal authority and due ptocess procedures

he used to transfer Petitioner from Golden Grove Prison St Croix Virgin Islands to Saugaro

Correctional Facility in Elroy Arizona on March 8 2016 and to two other private prisons operated

by C01rections Cooperation [sic] of America (March 20 2019 Motion )

‘11 12 On April 2 2019 Petitioner filed a motion fox immediate release and relief

01 protecting the Petitioner s statutory right to educational programs while incarcerated the Court will assume that the Petitioner Imam to say that Saguaro does not have the appropriate programs Taking that statement as tins. the Petitioner has alleged a prima tacit: ease for habeas relief Any further question of whether the Petitioner has been denied participation by the stall at Saguaro is an issue that may be addresud in luture proceedings Clam: Sit Renew 0t Comma Benteen Sagualo and 80C

The Respondent is theretore allowed to make an agreement for the Petitioner to be incarcerated outside of the Territory and this statute does not giwe the Petitioner the right to review that agreement especially as he has not alleged that Saguaro is not accredited As already determined above the issues of transfer procedure and a» ailability of educational programs will be addressed in this litioation Therefore the Petitioner has not made a prima tacie case for reliet on this claim (March 1 2019 Writ) (tootnotes omitted ) 3mm” Testamarlt SX 17 CV 219 Memorandum Opinion 2021 VI SUPER 1081] Page 5 0f 19

‘I[ 13 On April 30 2019 Petitioner filed another motion for a show cause order whereby

Petitioner requested the Court to require Respondent file an answer (response) to Petitioner 9

[July 25 2017 Petition] within 30 days hetefrom showing under what legal authority and due

process procedures he used to transfer Petitioner from Golden Grove Prison St Croix Virgin

Islands to Saugaro Conrectional Facility in Elroy Arizona on March 8 2016 and to two other

private prisons operated by Corrections Cooperation [sic] of America (April 30 2019 Motion )

(II 14 On Aptil 30 2019 Petitioner filed a traverse

(ll 15 On June 11 2019 Respondent filed a return

‘11 16 On July 12 2019 the Court entered and issued a memorandum opinion and writ of habeae

corpus (heteinafter July 12 2019 Wtit ) whereby the Court noted that Petitioner s motion f01

teconsideration relates to the three denied claims that stem from Title 5 Section 4503(0) of the

Virgin Islands Code which authoxizes the Director of the Bureau of Corrections to make

plisoner ttansfers out of the territoxy when the territory facilities are inadequate to serve the best

interest of the inmate 01 the general interest or welfare of the Virgin Islands granted Petitioner 5

March 18 2019 motion for reconsideration as to Claim Three denied Petitioner 5 March 18 2019

motion for reconsidetation as to Claim Two and Claim Four ordered the Respondent to file a

return addressing Claim One Claim Three and Claim Five and ordered that Petitioner may file a

traverse ‘

‘ In the July l2 20l9 Writ the Court explained Clan" THO Confinement m (1 Pill are PliSOII

In the Motion for Reconsideration the Petitioner brings up additional information that was not included in the Petition including that he is subject to a contract agreement between (plesumably) the Virgin Islands Bureau of Corrections (hereinafter BOC ) and the federal government that he remain confined in the Vircrin Islands Ewen it these altegationb been made in the Petition the Court would not hate allowed the claim to move forward beeause the Petitioner misstates his situation Though the Petitioner was tried in the Snuff” Testamatk SX 17 CV ”#19 Memorandum Opinion 2021 VI SUPER 108!) Page 6 0t 19

‘ll 17 On July 29 2019 Petitioner filed a first amended petition for writ of habeas corpus

(hereinafter “Amended Petition )

Distritt Court 01 the Virgin Islands the Lharges were based on local law and he was sentenced accordingly and ultimately plated in the custody of 130C As such the Court is not concerned with any prior agreement mack with the federal gmernment to house the Petitioner only with the BOC 3 current arrangement Further a litigant is not allowed to submit new arguments or lads t0 the Court in a motion for reeonsideraticn when they should have been brought up previously Since the Petitioner s allegation» regardino Claim Two do not state a prima tack case for reiitt the Court will not ruerse its denial of the claim Claim Three Cum ta {0; Initiating Tmnsfez Out at the Tenitorx

Upon review 01 this issue the Court sees that it overlooked the ailegation that Eh:w Respondent may have aLtLd arbitrarily in suiccting the Petitioner for relocation our other inmates However the Petitioner s assertion that then. art. no written guidtlines for choosina when to Hamlet a prisoner is not tiahle because the guidelines. are clearly listed in the Rules & Reuulations The Court also finds that the guidtlines in the Rules & Regulations also apply indireetly t0 the Director 5 inquiry regarding whether the laeiiities in thL Virgin Islands may be inadequate Fm example Virgin [stands facilities art. inadequate when an inmate requires medial} care that is Ulla» aikahh. to him in the Viroin Islands The Court maintains its position that any Vioiation of (1m. proeess stems not from a lack oi written 0uidelines for the Respondent to lollow and it would likei} be the Respondent who would make those rules an) how but {mm the denial at a transfer hearing at whiLh a person can hear the :easons for his transfer viva obiettions In sum the Court will allow Claim Three to proud 0n the allegation that the RLspOntiLnl acted arbitrarily in thawing the Petitioner for transit] but will not hear anything lUIIhu‘ rciating to written guidelines tor transfer on choosing tumbler lacilitits The Court wilt redefine Claim Three as an assertiun 0t arbitrary transler out of the tenitory in noncompliance u. ith §uti0n 4501 9 ot the Rules & Reoulations Chum Fem Cumin [bi Clumtmg TIaIlYtEI Fatalities

This issue was addressed in one 0! the Petitioner s ptuimts habeas wrpus cases Appellant‘s ehaltenge is preditatetl 0n the contention that the {Director of the Bureau 0t Corrections tailed to promuloate lulu and regulations mandated by the legislature estabiishing the procedure by which the Bureau of Corrections ascertained the awaiiability of educational and/or vocational programs at the institution to which a Virgin Islands inmate is translcrred However in this matter the words of the statute an. clear A plain reading of this statute reveals that the Attorne) General must ”determine that educational programs exist at the facility to which an inmate is transferred 2) ascertain that the purpose of such programs are tor inmates to gain marketabie skills and 3) ensure that no inmate be transferred to an) institution lacking such programs There is no requirement that the programs be comparable nor that the Attorney General promulgate rules that ascertain that one institution 5 programs art. more or less ettective at making an inmate marketable than another institutions programs While Appellant s desire to seek educational opportunities tailored to his afipirations are well placui the statute cannot be interpreted to create procedures nor objectiVe eliteria that are not within its texted For the reasons stated abme the Court will not reconsider its disposition of Claim Four The ?etitioner has not math. a prima tacie case for relief on the basis that the Respondent must draft written guidelines tor choosing a transfer facility and ensuring that it has adequate educational programs (July 12 20l9 Writ) (footnotes omitted ) Smith 1 Testamaik SX 17 CV 319 Memorandum Opinion 2021 VI SUPER 108U Page, 7 0t 19

‘11 18 On August 2 2019 Respondent filed a second ietum in response to the Court 5 July 12

2019 Writ

‘11 19 On August 19 2019 Petitioner filed a motion for extension to file supplemental tiaverse

in response to Respondent 5 second retuin

‘11 20 On January 1 1 2021 Petitioner filed a motion for immediate decision and order whereby

Petitioner requested the Court to issue an order granting the [elief requested therein

JURISDICTION

‘11 21 The Superior Court of the Virgin Islands is authorized to heat petitions for writ of habeas

corpus" pursuant to Title 5 V I C § 1303 and Rule 1(c) of the Virgin Islands Habeas Corpus Rules

STANDARD OF REVIEW

‘11 22 Title 5 V IC § 1301 prOVides that [e]very person unlav» fully imprisoned 0r restrained of

his liberty under any pretense whatever may prosecute a writ of habeas comm to inquire into the

cause of such implisonment or restraint Title 5 V I C § 1304 provides that {t1he court authorized

to grant the writ to whom a petition therefor is presented shall grant the game without delay if it

appears that the Wilt ought to issue Rule 2 of the Virgin Islands Habeas Corpus Rules provides

The court must issue a writ of habeas corpus if the petitioner has alleged prima facie grounds showing entitlement to relief and the claims are not legally barred In assessing whether the petitioner would be entitled to relief if the factual allegations were proved the court must take petitioner s factual allegations as true The court does not determine at this stage whether the petitioner is entitled to discharge or any other form of remedy if habeas relief is ultimately granted The issuance of a writ of habeas corpus under this Rule is an inteimediate step pursuant to {Title} 5 V IC § 1304 which does not award any of the relief sought in the petition but requires the respondent to file a return responding to the petition

V I H C R 2(d)(1)

In Blyden t Gm Ioffhe Vzrgm Islands the Virgin Islands Supreme noted that it is sufficient that

a petitioner simply make allegations that if later proven true would entitle him to habeas relief Smir/zi Testamalk 9X 17 CV 319 Memorandum Opinion 2021 VI SUPER 108U Page 8 of l9

and that [o]nce that modest burden is met the petitioner has a right to the writ of habeas corpus

requiring the Government to file a return responding to the allegations in the habeas corpus

petition and produce the petitioner for an evidentiary hearing on the claims in his petition 64

V I 367 380 (V I 2016)

DISCUSSION

‘11 23 The Court will address the outstanding motions and Petitioner 5 Amended Petition in turn

A Outstanding Motions

‘ll 24 Upon ieView of the record the Court will order the following (i) Petitioner 5 March 20

2018 petition for a Wiit of habeas corpus 21d testificandum will be denied as moot since the June

29 2018 review hearing date already passed (ii) Petitioner 5 June 21 2018 motion for a new order

in response to the Cou1t s May 25 2018 order“1 will be denied as moot since the June 29 2018

review hearing date already passed (iii) Petitioner s July 12 2018 motion fox decisions on

motionS/petition pending will be denied as moot since the Court already ruled on Petitioner 5 July

25 2017 Petition and the substantive motions filed up to that date (iV) Petitioner s March 20 2019

and April 30 2019 motions for a show cause order will be denied as moot since the Court already

ordered Respondent to file a return in iesponse to Petitioner s July 25 2017 Petition S (v)

Petitioner s April 2 2019 motion for immediate release and relief will be denied since Petitioner

subsequently filed an Amended Petition and [tlhe court does not determine at this stage whether

4 The Court 5 May 25 2018 order granted Respondent 5 May 2| 20l8 motion for the June 29 2018 review hearing to proceed via Video conference ‘ UndLr Rule 2 01 the Virgin Islands Habeas Corpus Rules [llhe return must explain under what lawful order the petitioner is detained and must allege facts establishing the legality oi the. petitioner a custody and must comply with [Title] 5 V I C § 1308 V I H C R 2(e) Title 5 V I C § 1308 provides that [t]he person upon whom the writ is serud shall state in his return plainly and unequivoeally ( 1) whether he has or has not the party in his custody or under his power or restraint and (2) it he has the party in his custody or powu or under his restraint the authority and cause of such imprisonment 0r restraint Title 5 V I C § [10801) Smith 1 Tesrummlt SX l7 CV 319 Memorandum Opinion 2021 VI SUPER 1081.} Page 9 0t 19

the petitioner is entitled to discharge or any other form of remedy if habeas corpus relief is

ultimately granted and that [t]he issuance of a writ of habeas corpus under this Rule is an

intermediate step puxsuant to [Title] 5 V I C § 1304 which does not award any of the relief sought

in the petition but requires the respondent to file a return responding to the petition VI HCR

2(d)(l)' (vi) Petitioner 9 August 19 2019 motion for extension to file supplemental traverse in

response to Respondent 5 second ieturn will be denied as moot since Petitioner filed an Amended

Petition and (vii) Petitionei s Januaiy l l 2021 motion for immediate decision and order will be

denied since Petitioner s Amended Petition is still pending before the Court and {t]he court does

not determine at this stage whether the petitioner is entitled to discharge or any other form of

remedy if habeas corpus relief is ultimately granted and that [t]he issuance of a writ of habeas

corpus under this Rule is an intetmediate step pursuant to {Title} 5 V I C § 1304 which does not

award any of the relief sought in the petition but requires the tespondent to file a return responding

to the petition V I H C R 2(d)(l)

B Petitioner’s Amended Petition6

(II 25 Upon teview of the Amended Petition the Court finds that Petitioner is ultimately

requesting habeas relief based on the following four claims (i) Petitioner was transferred from a

U 3 Virgin Islands prison to stateside prison facilities in Violation of his rights under Vitgin

Islands laws (Claim One) (ii) Petitioner has been denied access to educational andlor vocational

programs during his term of imprisonment in any U S mainland prisons in violation of his rights

Virgin Islands laws (Claim Two)“ (iii) Petitioner s confinement in a mainland prison affected the

6 Neither the Vilgin Islands Code nor in the Virgin Islands Habeas Corpus Rules addresses filing an amended petition tor writ of habeas corpus At this juncture the Court sees no reasons to not accept Petitioner 5 Amended Petition Cj V I H C R 2(k) ( A petitioner should raise all then a» ailablt. legal grounds in support oi the writ of habeas corpus in the initial application provided howeVer that successive habeas corpus petitions may be filed ) 517111111 Testamatk 9X 17 CV 119 Memorandum Opinion 2021 VI SUPER 108U Page 10 of 19

length of his sentence by depriving him of the ability to seek early parole release in Violation of

his right to seek early parole telease under Virgin Islands laws and his right to due process (Claim

Three) and (iv) Petitioner s rights to be free from ietaliatory actions fox exercising his

constitutional rights to seek redress is being Violated by his transfer to U S mainland prisons in

violation of his due piecess rights

Clam: One Petmoner s Tianster to Stateside Prison Faulmes nus m Violation of HIS Rights Under VII gm Islands Law a

(H 26 In his Amended Petition Petitionei alleged inter aIia that (i) On March 8 2016 in the

early morning Petitioner was told that he was being transferred from St Croix to a prison within

the United States of America (Amended Pet ‘11 1) (ii) Petitioner was then transfeired t0 Saguaro

Correctional Center in Eloy Arizona a private prison opeiated by Corrections Corporation of

Ameiica (CCA) now known as CoreCivic (CC) on March 8 2016 at around 12 30 a m {sic}

where he was incarcerated until October of 2017 when Petitioner w[as] tiansferied to Central

Arizona Detention Center in Florence Arizona (Amended Pet ‘1[ 10) (iii) In February 6 2018

Petitionet was moved from Central Arizona Detention Center in Florence Arizona to Tallahatchie

County Correctional Facility in Tutwiier Mississippi where Petitioner remained housed up until

May 13 of 2019 (Amended Pet ‘11 11) (iv) In May of 2019 Petitioner was tiansferred from

Tallahatchie County Correctional Facility in Mississippi to CCA/Citrus County Detention Facility

in Lecanto F101ida (operated by Core Civic Corporations) where Petitioner is presently confined

(Amended Pet 11 12) (v) Prior [0 Petitioner 5 transfer to U S mainland Prisons from Golden

Grove Adult Correctional Faculty in St Croix U S V I Petitioner was not provided with a hearing

or notice of the proposed transfer and was not provided with an opportunity to contest the transfer

in accordance with the procedural requirements under the Virgin Islands RuIes and Regulations 5mm“ Testammk SX 17 CV 119 Memorandum Opinion 2021 VI SUPER 108U Pa e ll 0! 19

(VIRR) that should be provided to a U S Virgin Islands inmate before he may be nansferred to a

U S Mainland Institution (Amended Pet ‘ll 14) (vi) Respondent did not perf01m the analysis

under the VIRR s to asceltain whether 01 not petitionex s nansfer would have been in Petitioner s

best interest or the best interest or welfare of the U S Virgin Islands or if any of the other criteria 5

for transfer undet the VIRR s or the V I Transfer statute existed (Amended Pet ‘11 15) (vii)

Petitioner 5 transfer to a mainland prison was not in Petitioner s best interest nor the best interest

or the welfare of the U S Vitgin Islands nor did any of the other criteria 3 under the VIRR s for

transfer of a Virgin Islands inmate to a U S mainland prison exist (Amended Pet (II 16) and(viii)

Petitionet suffered irreparable balm by virtue of loss of his liberty interest statut01y tights and

legal rights by being essentially exiled from the {V}irgin Islands without being provided any

procedural due process pxocedures (Amended Pet ‘f[ 18 )

‘11 27 The Vilgin Islands Code provides

Commitment to institutions within the jurisdiction of the Bureau [of Corrections] shall be to the Bureau [of Cortections] not to a particular institution The Director of Corrections shall assign a new 1y committed inmate to an approptiate institution He may transfer an inmate ftom one institution to another consistent with the commitment and in accordance with treatment training and security needs

Title 5 V I C § 4505

The Virgin Islands Codes also ptoVides that [t]he Director of Corrections is authorized to enter

into agreements to nee the correctional or detention facilities of the United States Bureau of

Prisons' or the correctional facilities of any state or local government or private correctional entity

located in the United States its territories possessions commonwealths or the District of

Columbia which are accredited by the American Correctional Association when the Director of

Corrections determines that detention and/or correctional facilities within the Virgin Islands are

inadequate to serve the best interest of the inmate or the general interest or welfare of the Territory Snark l Testammk 8X 17 CV ”H9 Memorandum Opinion 2021 VI SUPER £08U Pa e l2 of 19

proviéed that as a condition of and prior to the transfer of any inmates the Director of Corrections

shall ascertain and insure the availability of educational and/or vocational ptograms at the

institution they are to be transferred to for the pu1pose of enabling such inmates to gain marketable

skills and p10» ided feather that no inmate is to be transferred to any institution lacking any such

program(s} ’ Title 5 V I C § 4503(c) The Code of U S Virgin [stands Rules sets forth specific

procedures for the ttansfer of any prisoner from pzison facilities in the Virgin Istands t0 stateside

prison facilities including but not limited to requiring “[a] committee of three persons shalt be

formed to hold an administrative hearing prior to the transfer of any prisoner from prison facilities

in the Virgin Islands to stateside prison facilities 7 Title 5 C V 1 R § 4503 I The Code of U S

Virgin Islands Rates also sets, forth specific criteria for the selection of inmates to be ttansferted

to wit “Selection of inmates to be transferred may be made by the foilowing critetia and f01 any

other good cause as detetmined by the Director to wit (l) Prisoners who voluntarily request

7 Other requirements under the Code of U S Virgin islands Rules inelude (i) The eommittee shall he eomprised oi the warden or designee aeting as ehairman one shift supenisor from the prison eorreetion eta” who is tamiliar with the prisoner and anothel person who is a member oi the staff 01 the administrator oi the prison Title 5 C V I R § 4503 2 (ii) The prisonel shall be giwen a written notiee oi the hearing at least "’4 hours prior to the hearing whieh notice shalt not only state the time and plaee ot the hearing but the leases“. the transfer is being eontemptated An inmate 5 request tor a postponement 0E his hearing shall be granted unless good eause exists tor retusing the request However no postponement shall extend more than three (3) days from the date [or which the hearing was originain Set Title 5 C V i R § 450? 3 (iii) A written statement of the taets or eireumstanees relied upon by the Bureau and upon whieh it propane to determine that the inmate should be transferred shall be presented to the inmate simultaneousty with the notiee of hearing Title 5 C V l R § 4503 4 UV) The inmate shall be alltJWed to eat} witnesses on his behalf and to present any (ioeumentary evitienee available to him in an eltont to establish that the transter is unwarranted unless the Direetor of the Bureau in writino eoneludes tor any reason that eomplianee with the aboye would he disruptive to the hearing would eause an undue burden on the institution 5 administration woutd be unduky hazardous to the satiety of the institution or that compliance would compromise institutional safety or eorreetional goats Title 5 C V I R § 4503 5 (V) In instaneee in which the inmate is physically or mentally unabie to eolleet and present the evidenee necessary for adequate presentation of his case including those instances in whieh the inability results from lack of intelleetual capacity the inmate shaft be allowed to seek the assistance ot a fellow inmate who shah serye as his representative or if this is deemed not teasible he shall he afforded adequate substitute aid which may take the form of either assistance from a stait member or Item 3 suffieiently competent inmate desionateel by the staff Title 5 C V E R § 4503 6 and (vi) A record shall be made of the findings of the committee and the evidence reheat on to make the findings as well as a statement at the recommendations The reeord of the proceedings shall he forw arded to the Director ot the Bureau 01 Corrections The Director shall inform the prisoner in writing of the findings from the hearing and the reasons tor the Directors decision Title 5 C V I R § 450% 7 511ml“ Testamalk 5X 17 CV 319 Memorandum Opinion 2021 VI SUPER 108U Page 13 0f 1‘)

transfer (2) Inmates in need of medical or psychiatric care (3) Recommendation by the Courts to

transfer the prisoner (4) Inmate with long term sentencing However this criterion will be valid

only so long as the Virgin Islands lacks facilities for extended segregation of 10mg term prisoners

For this purpose long tetm means a sentence of imprisonment of not less than 10 years (5) A

finding by the ptison administiation that the inmate is a high risk for escaping (6) A pattetn of

distuptive action or behaVior on the part of the inmate (7) A finding by the Director that

cortectional facilities within the Virgin Islands are inadequate to setve the best inteiest 0f the

inmate or the general welfare of the Territory Title 5 C V I R § 4503 9

‘fl 28 Here taking Petitioner s factual allegations as true Petitioner was not given a Mitten

notice of an administrative hearing an administrative hearing was not held prim t0 Petitionel s

ttansfer to stateside plison facilities and none of the applicable procedures required under the

Virgin Islands Codes and the Code of U S Virgin Islands Rules were follow ed As such the Court

finds that Petitioner presented a prima tacie case that is not procedurally haired regarding his claim

that his transfer to stateside prison facilities was in violation of his rights under Virgin Islands

laws

Claim Two Petztzolzer s Confinement m Statetzde Pusan Fuulmes WIthout Access to Educational and/or V0((1110n(ll Programs has been a Violation of HIS Rights Under Virgin Islands Lam

$129 In his Amended Petition Petitioner also alleged inter alia that [t]he Correctional

Facilities in the U S mainland to which Petitioner was transferred did not have any vocational

and/or educational programs available to Petitioner (U S Virgin Islands inmates) prior to and after

Petitioner 5 transfer to said institutions therefore depriving Petitioner of the access to these Smu‘ht Testamark SX 17 CV 319 Memorandum Opinion 2021 VI SUPER 108U Page 14 0t 19

progtams which he requested during the time he was and is housed in these mainland institutions

(Amended Pet (ll 17 )

‘11 30 As noted above the Virgin Islands Code requires that as a condition of and prim to the

transfer of any inmates the Director of Corrections shall ascertain and insure the availability of

educational and/or vocational programs at the institution they are to be transferred to for the

purpose of enabling such inmates to gain marketable skills and provided futther that no inmate is

to be transferred to any institution lacking any such program(s) Title 5 V I C § 4503(c)

(1131 Here taking Petitionet s factual allegations as true the stateside prison facilities that

Petitioner was transferted to did not have any educational and/or vocational programs available to

Petitioner As such the Court finds that Petitioner presented a prima facie case that is not

procedurally barred regarding his claim that his confinement in stateside plison facilities without

access to educational and/01 vocational plograms has been a violation of his rights under Virgin

Islands laws

Clam: Three Pennonet A Confinement m Stateszde Pusan Facilities has Degnved Petttzmzei s A1911”) [0 Seek Early Parole Release m Violation of H19 Right to Seek Eat!) Parole Release Under Virgin Islands Lam and H15 Right to Due Frown

(ll 32 In his Amended Petition Petitioner also alleged inter alia that (i) Petitioner s transfer to

a U S Mainland Prison affects the terms and length of his imprisonment for Petitioner is required

to be examined by a psychiatrist/psychologist in order acquire a recommendation from said

psychiatrist/psychologist as one of the requirements of early parole however if Petitioner is

imprisoned in the U S Mainland the Parole Board and the Director has determined that petitioner

will not meet the psychiatrist/psychologist 3 requirements unless such experts are licensed by the

U S Virgin Islands Medical Board not any Medical Board of the [J S Mainland (Amended Pet szrht Testamark sx 17 CV 319 Memorandum Opinion 2021 VI SUPER 108U Page 15 0f l9

‘3{ 21) (iii) Petitioner cannot remove himself ftom a U S Mainland Ptison in order to be examined

by a Psychiatrist/Psychologist licensed in the U S Virgin Islands therefore Petitione1 5 present

confinement in a mainland prison which deprives Petitioner 0f the opportunity f01 a

psychological/psychiatrical [sic] examination in comport with the early parole statute totally

deprives Petitioner of his right to seek early patole release under the laws of the U S Virgin

Islands (Amended Pet fl 22)‘ and (iv) Petitioner is entitled to seek telease on Early Parole

under the laws of the U S Virgin Islands but is hindered from doing so as a result of him being

housed in a U S Mainland Prison in Violation of the protections of the due process clause of the

U S Constitution 5 14‘“ amendment of it s [sic] own force (Amended Pet ‘f[ 23 )

(ll 33 The Virgin Islands Code prOVides

Except for a prisonel sentenced to a term of life imprisonment without parole etery prisoner confined in any penitentiary jail or ptison for a violation of the V11 gin Islands law for a definite tetm or terms of over 180 days or for the term of his natural life whose record of conduct shows that he has observed the rules of the institution in which he is confined upon recommendation of the Directox of the Bureau Of Corrections supported by the recommendation of a psychiattist and/or psychologist may be released on palole after serving one half of such tetm or tetms or after serving 15 years of a life sentence or of a sentence of 30 years or more or after serving the minimum sentence required by law whichever is greater Ptovided however That the Boatd of Parole in its discretion by at least a two thirds affirmative vote of all its“ members upon recommendation by the Directors of the Bureau of C01 rections supported by the [ecommendation of a psychiatrist and/or psychologist is auth01ized to fix an earlier eligibility date for the release of a prisoner on parole after serving one third of his term or terms or after sewing 10 years of a life sentence or of a sentence of 30 years or more

Title 5 V [C §460l

The Virgin Islands Code further provides that [a]pp!icati0n for parole shall be made in writing

Title 5 V I C § 4603 see Title 5 C V I R § 4503(d) 1(a) The Code of U S Virgin Isiands Rules Smith I Testammk SX 17 CV 219 Memorandum Opinion 2021 VI SUPER IOSU Page 16 of 39

sets forth specific tequirements for presentation of applications to the Parole Board 3 The Code of

U S Virgin Islands Rules also provides that ‘ [w]hen the applicant is confined in the Virgin Islands,

he shah have the light ptovided he qualifies to appear before the Board and be given an

2‘ Requirements for presentation of applieations to the ?aroEe Board under the Code of U Q Vilain Islands Rules include (a) An applieations tor parole shah be in writino (b) No appEieation for parole shall he eoneidered uniess the prison records reveaE that the applieant’s eonduet has been uniformly exeelle m tor at least six (6) months preeedino the date of the submission 0t his applieation for parole (e) With respeet to a prisoner who was eomieted tor the Violation 01 a Virgin Maude law plior to July 7 £981 the provisions set forth in subparagraphe (d) (e) and (f) heme» shall appiy (d) Unless prohibited by law and unless he fails to reeeiVe the reeolnmendations speeilied in subparagraph (f) below eyery sueh prisoner eontined for mer 180 days for violation ot a Virgin Islands law» may be enneideled by the Parole Board for release on parole after serving one third 01 his term or terms or aftel 10 years of a lite sentence or a sentenee 0! over 30 years (e) Unless plohibited by law and unless he tails t0 reeeixe the reeommendations speeified in subparaglaph (1} beiow any sueh prisoner may he eonsidered by the Parole Board tor reiease on parole eariier than ahme set forth whenever unusual or extenuating eireumetaneee appear to justify sueh aetion In sueh eaSes a deseliptiun oi the unusual or extenuating cireumstanees shail be submitted in writing to the Parole Board on a term prmided by the Warden (f) In order to quality fol parole the applieant must be reeommended for parole by ( I ) the Warden and (2) a psyehiatrist or :1 p5) ehoiogist (g) With [espeet to a prisoner who was eomieted tor the violation of a Virgin Islands law on or altet July 7 1981 the proxisions set forth in subparagraphs (h) (i) and (i) below shalt apply (h) Unless prohibited by iaw and unEess he mite to reeeixe the reeommendations speeified in subparagraph (1') beiow eyery sueh prisoner eontined 101 over 180 days for Violation of a Vilcrin Iehmds law may be eonsidered by the Parole Board for lelease on parole after sewing one haif of his term or terms or after 15 years of a life sentenee or a sentenee over 30 years or after serving the minimum sentenee required by law WhieheVer is greater (1) Unless prohibited by law and uniebs he fails to remain: the reeommendations speeified in subparagraph (i) below any sueh prisoner may be eonsidered by the Paroie Board for releaSe on parole earlier than set forth in subparagraph (h) abme after Sening one third 01 his term or terms or after serving 10 years of a life sentence or of a sentenee 0t 30 years or more wheneyer unusual or extenuating eireumstanees appear to justify such aetion Zn sueh caSes a deseription of the unusual or extenuating Circumstanees shall be submitted in writing to the Parole Board on a torm prtnided by the Director of the Bureau 0t Corrections (3) in order to quaiity for patch: the appkieant must be reeommended for paroie by (l) the Direetor 0f the Bureau of Corrections and (2) a psyehiatrist or a psyehologist (k) Affirmative aetion by the Board requires the Vote of a majority of the Voting members present at a meeting provided that there must be at least three (3) sueh members voting The only exception to this rule is that of a reeommendation for early parole (see eubparagraphs (e) and (i) above) which require a two thirés vote of all the voting members of the Board Title 5 C V I R §4503(d) 1(a) (k) see Titie 5 C V I R § 4601 1(a) (e) SIIIlf/11 Tesmmmk 9X 17 CV 319 Memorandum Opinion 2021 VI SUPER 108U Page 1701 19

opportunity to orally exptess his viewpoints on his application for parole and that [w]hen

applicant is confined elsewhere he will be given an opportunity to submit his views in writing

Title 5 C V I R § 4601 10(d)

‘11 34 When government action depiives a person of liberty or property the Due Process Clause

is triggei Thus Courts must examine the natu1e of an individual s claimed interest when the

person alleges a denial of due process If a person possesses a legitimate claim or entitlement to a

liberty or property interest that interest becomes protectable under the Due Process Clause

Josiah 1 Farrell) 28 V I 101 l 10 (V I Terr Ct June 15 1993) Here Petitioner indeed has a

right to apply for parole early or otherwise under the Virgin Islands Code and the Code of U S

Viigin Islands Rules However there are no requitements undet the Virgin Islands Code or the

Code of U S Virgin 181ands Rules that the prisonet has to be physically located in a prison facility

in the V11 gin Is1ands to submit an application for parole and be considered for palole or that the

p1is0net has to be physical located in a ptison faci1ity in the Virgin Islands to be examined by a

psychiatrist or a psychologist or that the examining psychiatrist or psychologist has to be licensed

to piactice in the U S Virgin Islands In other words the location of Petitionel s confinement does

not take away his right to apply f01 parole early or otherwise because it does not affect his ability

to seek early parole release As such the Court finds that Petitioner s factual allegations even if

true has not set forth a prima facie case regarding his c1aim that his confinement in stateside prison

facilities has deprived his ability to seek early parole release in violation of his right to seek early

parole release under Virgin Islands laws and his right to due process

Clazm Four Petmoner 5 Transfer to Stclteszde Prison Faczlttzes was Due to Resgondent s Retaltatory Actions to Hinder Petitioner s AblllQ to Seek Earl} Parole Release m VlOltlthll 0t HIS Rzght to Seek Earl) Parole Release Under Virgin Islands Laws and H15 Rzght t0 Due Process SImt/It Tesrcmlmk 9X 17 CV 119 Memorandum Opinion 2021 VI SUPER 108U Pane 18 0f l9

‘11 35 In his Amended Petition Petitioner also alleged inter alia that (i) Petitioner 5 selection

for transfer to the U S Mainland prisons was arbitrarily and capricioust instituted as Petitioner

was selected for transfer only out of personal animosity by the Director and his staff because of

petitionei s constant vigilance of seeking early parole telease from the U S Virgin Islands Parole

Board ( Amended Pet ‘11 19) and (ii) Petitioner 5 transfer to the U S Mainland Prisons was

utilized as a means to hinder Petitioner s ability to pmsue Early Parole Release f[r0]rn the U S

Virgin Islands Parole Board (Amended Pet ‘11 20 )

‘11 36 Here Petitioner essentially alleged that his transfer to stateside prison facilities was due to

Respondent s retaliatory actions to hinder Petitioner s ability to seek early parole release 9 and

therefore the transfer was in violation of his right to seek early parole release under Virgin Islands

laws and his tight to due process Howexei as noted above the location of Petitionet s

confinement does not take away his right to apply for parole early or otherwise because it does

not affect his ability to seek early parole telease Thus the fact that Petitioner was transferred to

stateside prison facilities in and of itself does not constitute retaliatory actions by Respondent to

hinder Petitioner s ability to seek early parole release As such the Court finds that Petitioner s

factual allegations even if hue has not set forth a prima facie case regarding his claim that his

transfer to stateside prison facilities was due to Respondent s retaliatory actions to hinder

9 The Court already addressed Petitioner s allegation that his transfer to stateside prison facilities was arbitrary in Claim One to wit the Court stated that taking Petitioner s factual allegations as true Petitioner was not given a written notice of an administrative hearing an administratiye hearing was not held prior to Petitioner 3 transfer to stateside prison facilities and none of the applicable procedures required under the Virgin Islands Codes and the Code of U 8 Virgin Islands Rules were followed Thus the Court will only address Petitioner s allegation that his transfer to stateside prison facilities was due [0 Respondent s retaliatory actions to hinder Petitioner s ability to seek early parole release in Claim Four Smith \ Tetramalk 9X 17 CV '49 Memorandum Opinion 2021 VI SUPER 108U Page 19 0t [9

Petitionet s ability to seek early parole release in violation of his right to seek early parole telease

under Virgin Islands laws and his tight to due process

CONCLUSION

‘11 37 Based on the foregoing the Court will deny the outstanding motions and grant in pant and

deny in part Petitioner 5 Amended Petition A writ consistent with this Memorandum Opinion will

be entered contemporaneotl§ly herewith

DONE this . £2; 5?“day of October 2021

ATTEST $4.42 fig dégg Tamara Charles HAROLD W L WILLO S Clelk of the Court Presiding Judge of the Superior Court / % By / A W Court 1k Supervisor

Dated ”31‘2"? [203/